When a certificated security has been lost, destroyed or wrongfully taken, the issuer has an obligation to replace that certificate if the owner:

So requests before the issuer has notice that the certificate has been acquired by a protected purchaser;

Files with the issuer a sufficient indemnity bond; and

Satisfies other reasonable requirements imposed by the issuer.

Cal. Comm. Code § 8405 and Cal. Corp. Code § 419.

Often issuers will require the owner to submit an “Affidavit of Lost Share Certificate”. Undoubtedly, this is a “reasonable requirement” within the meaning of the statute. Often, however, I find that something is missing from these affidavits.

The California General Corporation Law contemplates that certain instruments will be “verified”. For example, an “officers’ certificate” is “a certificate signed and verified by the chairman of the board, the president or any vice president and by the secretary, the chief financial officer, the treasurer or any assistant secretary or assistant treasurer.” Cal. Corp. Code § 173. The law provides for two methods of verification – by affidavit and by declaration. Cal. Corp. Code § 193.

So what’s the difference between an “affidavit” and a “declaration”? Essentially, an oath. A declaration is a statement made “under penalty of perjury” and stating the date and place (whether within or without this state) of execution. An affidavit is a signed statement made under oath before an officer authorized by the laws of this state or of the place where it is executed to administer oaths. See Cal. Code Civ. Proc. § 2003 (“An affidavit is a written declaration under oath, made without notice to the adverse party.”) Sometimes, people will overlook the oath requirement and omit the jurat. In California, the wording of the jurat is prescribed by Government Code Section 8202.

Key wording of a jurat is “Subscribed and sworn to (or affirmed) before me.” A jurat cannot be affixed to a document mailed or otherwise delivered to a notary public whereby the signer did not personally appear, take an oath, and sign in the presence of the notary public, even if the signer is known by the notary public. Also, a notary public seal and signature cannot be affixed to a document without the correct notarial wording.

*There is no prescribed wording for the oath, but an acceptable oath would be “Do you swear or affirm that the statements in this document are true?” When administering the oath, the signer and notary public traditionally each raise their right hand but this is not a legal requirement.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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